Citation Nr: 1029199
Decision Date: 08/04/10 Archive Date: 08/16/10
DOCKET NO. 09-21 835 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Hartford,
Connecticut
THE ISSUES
1. Entitlement to service connection for low back pain, with
history of surgery and degenerative disc disease.
2. Entitlement to an initial compensable rating for left ankle
strain.
3. Entitlement to an initial compensable rating for left
hamstring muscle strain/injury.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
R. Williams, Associate Counsel
INTRODUCTION
The Veteran served on active duty from March 1987 to September
1987, from January 2001 to February 2001, from January 2003 to
June 2003, from August 2003 to September 2003, and from November
2006 to September 2007.
This matter came to the Board of Veterans' Appeals (Board) on
appeal from a February 2008 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Newington,
Connecticut, which, in pertinent part granted service connection
for left ankle strain and left hamstring muscle strain/injury,
and denied service connection for low back pain, with history of
surgery and degenerative disc disease.
The Board also notes that the February 2008 rating decision also
granted service connection for right ear hearing loss and right
and left hand carpal tunnel, all rated as noncompensable, and
denied entitlement to service connection for a respiratory
condition. The appellant only perfected an appeal for the issues
of entitlement to service connection for low back pain, with
history of surgery and degenerative disc disease, and entitlement
to initial compensable ratings for left ankle strain and left
hamstring muscle strain/injury. See 38 C.F.R. § 20.200 (2009).
In February 2010, the Veteran testified at a video conference
hearing before the undersigned Veterans Law Judge. A transcript
of this hearing is of record.
The issues of entitlement to service connection for low back pain
and entitlement to an initial compensable rating for left
hamstring muscle strain/injury are addressed in the REMAND
portion of the decision below and are REMANDED to the RO via the
Appeals Management Center (AMC), in Washington, DC.
FINDING OF FACT
The Veteran's left ankle strain is not manifested by moderate
limitation of motion, ankylosis, ankylosis of the subastragalar
or tarsal joint, malunion of the os calcis or astragalus, or
astragalectomy of the left ankle.
CONCLUSION OF LAW
The criteria for an initial compensable rating for a left ankle
strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002);
38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic
Codes (DC) 5270-5274 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
Duty to Notify and Duty to Assist
The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's
duty to notify and assist claimants in substantiating a claim for
VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126;
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt
of a complete or substantially complete application for benefits,
VA is required to notify the claimant and his or her
representative, if any, of any information, and any medical or
lay evidence, that is necessary to substantiate the claim.
38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b);
Quartuccio v. Principi, 16 Vet. App. 183 (2002).
The RO provided VCAA notice letters to the Veteran in October and
December 2007, before the original adjudication of the claim.
The December 2007 letter notified the Veteran of what information
and evidence must be submitted to substantiate a claim for
service connection, as well as what information and evidence must
be provided by the Veteran and what information and evidence
would be obtained by VA. The content of the letter complied with
the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b).
This appeal arises from disagreement with the initial evaluation
following the grant of service connection. The courts have held
that once service connection is granted the claim is
substantiated, additional notice is not required, and any defect
in the notice is not prejudicial. See Hartman v. Nicholson, 483
F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112
(2007). Therefore, no further notice is needed under VCAA.
Nevertheless, the December 2007 notice included the provisions
for the effective date of the claim and for the degree of
disability assignable. VA's notice duties have been fulfilled.
The Board finds that all relevant evidence has been obtained with
regard to the Veteran's claim for an increased rating, and the
duty to assist requirements have been satisfied. VA treatment
records dated from 2005 to 2009 were obtained and associated with
the claims folder. A VA examination was performed in 2007 in
order to obtain medical evidence as to the nature and extent of
the claimed disability. The Board finds that, collectively, the
VA examination and treatment reports obtained in this case are
adequate. The VA examiner reviewed the Veteran's medical
history, conducted necessary testing to properly evaluate the
claimed disability, and recorded pertinent findings consistent
with the examination and record. The Board finds that the VA
examination report is probative. See Nieves-Rodriguez v. Peake,
22 Vet. App. 295 (2008). Accordingly, the Board finds that VA's
duty to assist with respect to obtaining a VA examination or
opinion with respect to the issue on appeal has been met. 38
C.F.R. § 3.159 (c)(4). There is no identified relevant evidence
that has not been accounted for.
Under the circumstances, the Board finds that there is no
reasonable possibility that further assistance would aid the
Veteran in substantiating the claim. Hence, no further notice or
assistance to the Veteran is required to fulfill VA's duty to
assist him in the development of the claim. Smith v. Gober,
14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143
(2001).
Legal Criteria
Disability evaluations are determined by the application of a
schedule of ratings which is based, as far as can practicably be
determined, on the average impairment of earning capacity. 38
U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2009). Each
service-connected disability is rated on the basis of specific
criteria identified by diagnostic codes. 38 C.F.R. § 4.27
(2009).
The basis of disability evaluations is the ability of the body as
a whole, or of the psyche, or of a system or organ of the body to
function under the ordinary conditions of daily life including
employment. 38 C.F.R. § 4.10 (2009). It is also necessary to
evaluate the disability from the point of view of the Veteran
working or seeking work and to resolve any reasonable doubt
regarding the extent of the disability in the Veteran's favor.
38 C.F.R. §§ 4.2, 4.3 (2009). If there is a question as to which
evaluation to apply to the Veteran's disability, the higher
evaluation will be assigned if the disability picture more nearly
approximates the criteria for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7 (2009). After careful
consideration of the evidence, any reasonable doubt remaining is
resolved in favor of the Veteran. 38 C.F.R. § 4.3.
An appeal from the initial assignment of a disability rating,
such as this case, requires consideration of the entire time
period involved, and contemplates staged ratings where warranted.
See Fenderson v. West, 12 Vet. App. 119 (1999).
When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the Veteran. See
38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski,
1 Vet. App. 49, 53 (1990), it was observed that "a veteran need
only demonstrate that there is an 'approximate balance of
positive and negative evidence' in order to prevail." To deny a
claim on its merits, the preponderance of the evidence must be
against the claim. Alemany v. Brown, 9 Vet. App. 518, 519
(1996), citing Gilbert, 1 Vet. App. at 54.
Analysis
By history, a February 2008 rating decision by the RO granted
service connection for left ankle strain, rated as
noncompensable. The Veteran contends that a higher rating is
warranted.
Under 38 C.F.R. § 4.71a, DC 5271, the diagnostic code under which
the Veteran's left ankle strain is currently rated, a 10 percent
rating is warranted if the ankle shows moderate limitation of
motion. As there is no regulatory definition of moderate
limitation of motion, the Board must apply the term in a manner
that is "equitable and just." 38 C.F.R. § 4.2. The normal
range of motion of the ankle is dorsiflexion from 0 to 20 degrees
and plantar flexion from 0 to 45 degrees. 38 C.F.R. § 4.71,
Plate II.
According to the November 2007 VA examination, the Veteran
reported experiencing pain over the left Achilles tendon. The
Veteran also reported experiencing flare-ups 2-3 times per week.
Upon examination, left ankle range of motion was from zero to 20
degrees of dorsiflexion, zero to 45 degrees of plantar flexion,
zero to 20 degrees of inversion, and zero to 5 degrees of
eversion. There was pain on plantar flexion, and range of motion
was not additionally limited by pain, fatigue, weakness, or lack
of endurance following repetitive use. There was no objective
evidence of edema, effusion, instability, weakness, heat,
redness, or tenderness of the left ankle.
Given the normal range of motion for dorsiflexion and plantar
flexion, the Veteran's left ankle strain cannot be reasonably
classified as having moderate limitation of motion. Thus, a
compensable rating under DC 5271 is not warranted. The
provisions of 38 C.F.R. § 4.31 indicate that in every instance
where the minimum schedular evaluation requires residuals and the
schedule does not provide for a zero percent evaluation, a zero
percent evaluation will be assigned when the required
symptomatology is not shown. 38 C.F.R. § 4.31 (2009). Because
the Veteran does not meet the minimum criteria for a scheduler
evaluation under Diagnostic Code 5271, no more that a zero
percent rating can be assigned under its provisions. Id.
The Board observes that other provisions in the Ratings Schedule
related to disabilities of the ankle are not applicable.
Diagnostic Code 5270 (ankylosis of the ankle), Diagnostic Code
5272 (ankylosis of the subastragalar or tarsal joint), Diagnostic
Code 5273 (malunion of the os calcis or astragalus), and
Diagnostic Code 5274 (astragalectomy) do not apply. The Veteran
was not diagnosed with, nor does he contend that he had,
ankylosis, ankylosis of the subastragalar or tarsal joint,
malunion of the os calcis or astragalus, or astragalectomy of the
left ankle. Therefore, the Veteran's left ankle strain is not
entitled to a compensable rating under DCs 5270, 5272, 5273, or
5274. 38 C.F.R. § 4.71a.
The Board observes that the Veteran's left ankle symptomatology
does not seem to have fluctuated materially during the course of
this appeal. Thus a staged rating need not be considered.
Fenderson, supra. VA treatment records indicate the Veteran's
complaints of pain. A 2008 MRI of the ankle reflects an old tear
of the anterior talofibular ligament likely related to old ankle
sprain, but unremarkable examination of the ankle otherwise. The
Board further notes the Veteran's continued complaints of pain
and inability to run. In any event, the Board observes that at
no time has his left ankle symptomatology warranted a compensable
evaluation under Diagnostic Code 5271.
In the present case, it should also be noted that when evaluating
disabilities of the musculoskeletal system, 38 C.F.R. § 4.40
(2009) allows for consideration of functional loss due to pain
and weakness causing additional disability beyond that reflected
on range of motion measurements. DeLuca v. Brown, 8 Vet. App.
202 (1995). Further, 38 C.F.R. § 4.45 (2009) provides that
consideration also be given to weakened movement, excess
fatigability, and incoordination. No additional compensation is
warranted under these provisions because functional loss due to
pain and weakness causing additional disability beyond that
reflected on range of motion measurements was not shown.
Moreover, weakened movement, excess fatigability, and
incoordination have not been shown.
Extraschedular Rating
Although the Board is precluded by regulation from assigning an
extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first
instance, the Board is not precluded from considering whether the
case should be referred to the Director of VA's Compensation and
Pension Service for an extraschedular rating.
The threshold factor for extraschedular consideration is a
finding that the evidence presents such an exceptional disability
picture that the available schedular ratings for that service-
connected disability are inadequate. This is accomplished by
comparing the level of severity and symptomatology of the
service-connected disability with the established criteria. If
the criteria reasonably describe the Veteran's disability level
and symptomatology, then the Veteran's disability picture is
contemplated by the Rating Schedule, and the assigned schedular
evaluation is, therefore, adequate and referral for an
extraschedular rating is not required. Thun v. Peake, 22 Vet.
App. 111, 115 (2008).
The evidence in this case does not show such an exceptional
disability picture that the available schedular evaluation for
the service-connected left ankle strain is inadequate. The
disability picture is contemplated by the Rating Schedule, and
the assigned schedular rating is, therefore, adequate. It is
also noted that there is no evidence of any hospitalization or
interference with employment related to the service-connected
left ankle strain. Consequently, referral for extraschedular
consideration is not required under 38 C.F.R. § 3.321(b)(1).
In summary, for the reasons and bases expressed above, the Board
has concluded that the preponderance of the evidence is against a
finding that the service-connected left ankle strain warrants a
compensable rating. See Gilbert v. Derwinski, 1 Vet. App. 49
(1990).
ORDER
Entitlement to an initial compensable evaluation for a left ankle
strain is denied.
REMAND
The Veteran seeks service connection for a low back condition.
He asserts that he had a pre-existing back condition which was
aggravated in service because of wearing heavy protective gear
during his most recent deployment.
The Board notes that, where VA undertakes the effort to provide
an examination when developing a service connection claim, it
must provide an adequate examination, or at a minimum, notify the
claimant why one will not or cannot be provided. See Barr v.
Nicholson, 21 Vet. App. 303, 311 (2007). Moreover, in Stefl v.
Nicholson, 21 Vet. App. 120 (2007), the Court found that
"[w]ithout a medical opinion that clearly addresses the relevant
facts and medical science, the Board is left to rely on its own
lay opinion, which it is forbidden from doing."
The law provides that every veteran shall be taken to have been
in sound condition when examined, accepted, and enrolled for
service, except as to defects, infirmities, or disorders noted at
the time of the examination, acceptance, and enrollment, or where
clear and unmistakable evidence demonstrates that the injury or
disease existed before acceptance and enrollment and was not
aggravated by such service. 38 U.S.C.A. §§ 1110, 1111 (West
2002). Only such conditions as are recorded in examination
reports are to be considered as noted. 38 C.F.R. § 3.304(b)
(2009).
In Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), the effect
of 38 U.S.C.A. § 1111 on claims for service-connected disability
was summarized:
When no pre-existing condition is noted upon entry into service,
the veteran is presumed to have been sound upon entry. The
burden then falls on the government to rebut the presumption of
soundness by clear and unmistakable evidence that the veteran's
disability was both pre-existing and not aggravated by service.
The government may show a lack of aggravation by establishing
that there was no increase in disability during service or that
any increase in disability was due to the natural progress of the
pre-existing condition. 38 U.S.C. § 1153 (West 2002). If this
burden is met, then the veteran is not entitled to service-
connected benefits. However, if the government fails to rebut
the presumption of soundness under 38 U.S.C.A. § 1111, the
veteran's claim is one for service connection. This means that
no deduction for the degree of disability existing at the time of
entrance will be made if a rating is awarded. 38 C.F.R. § 3.322
(2009).
On the other hand, if a pre-existing disorder is noted upon entry
into service, the veteran cannot bring a claim for service
connection for that disorder, but the veteran may bring a claim
for service-connected aggravation of that disorder. In that case
38 U.S.C.A. § 1153 applies and the burden falls on the veteran to
establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417
(Fed. Cir. 1994). If the presumption of aggravation under 38
U.S.C.A. § 1153 arises, the burden shifts to the government to
show a lack of aggravation by establishing "that the increase in
disability is due to the natural progress of the disease." 38
U.S.C. § 1153 (West 2002); see also 38 C.F.R. § 3.306 (2009);
Jensen, 19 F.3d at 1417; Wagner, 370 F.3d at 1096 (Fed. Cir.
2004).
If the veteran has a condition that pre-existed military service,
the issue becomes whether the disease or injury was aggravated
during service. A pre-existing injury or disease will be
considered to have been aggravated by active service where there
is an increase in disability during such service, unless there is
a specific finding that the increase in disability is due to the
natural progression of the disease. Aggravation may not be
conceded where the disability underwent no increase in severity
during service on the basis of all the evidence of record
pertaining to the manifestations of the disability prior to,
during, and subsequent to service. 38 U.S.C.A. 1153 (West 2002);
38 C.F.R. 3.306(b) (2009); Falzone v. Brown, 8 Vet. App. 398, 402
(1995). Temporary or intermittent flare-ups of a pre-existing
injury or disease are not sufficient to be considered
"aggravation in service" unless the underlying condition
itself, as contrasted with mere symptoms, has worsened. See
Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v.
Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet.
App. 292, 297 (1991).
The record currently contains only service treatment records
dated from December 2006 to September 2007. A June 2007
treatment record shows a complaint of back pain which had
started two days earlier.
According to the 2007 VA examiner, the Veteran has degenerative
disc disease. The examiner noted the inservice treatment for
back pain in June 2007 and also noted that the Veteran had a
history of surgery of the L5-S1 spine with discectomy in 1997.
The examiner further noted that it is at least as likely that the
tour in Iraq with the heavy body armor and the bouncing in the
vehicles, and walking over uneven terrain exacerbated the
Veteran's symptoms. The examiner did not address whether the
Veteran in fact had a pre-existing back disability which was
aggravated by his active service. Given the foregoing, the Board
finds that a VA medical opinion is necessary to determine whether
military service aggravated any pre-existing low back pain, in
accordance with the above-cited law.
Regarding the Veteran's claim for an increased rating for his
left hamstring muscle strain/injury, the Board finds that
examination is required so that the decision is based on a record
that contains a current examination. The statutory duty to
assist specifically includes the conduct of a thorough and
contemporaneous medical examination, so that the evaluation of
the claimed disability will be a fully informed one. Green v.
Derwinski, 1 Vet. App. 121 (1991).
The Board has carefully examined the November 2007 VA
compensation examination, and finds that this examination is
inadequate for rating purposes. The examination a failed to
report the presence or absence of any of the cardinal symptoms of
muscle injury, set forth in 38 C.F.R. § 4.56(c). Thus, it is not
adequate for rating purposes because it does not contain
information relating to the criteria for rating the disease. See
38 C.F.R. § 4.2 (2009) (If the findings on an opinion and/or
examination report do not contain sufficient detail, it is
incumbent upon the rating board to return the report as
inadequate for evaluation purposes); Massey v. Brown, 7 Vet. App.
204, 208 (1994). In addition, there is no indication of the
severity of any related orthopedic or nerve symptoms. Thus, the
Veteran should be afforded a current examination to ascertain the
current nature and manifestations of his left hamstring muscle
strain/injury. The examination should include a review of the
claims file and contain sufficient findings to evaluate the claim
under the relevant diagnostic criteria.
Prior to the examination, the RO should attempt to obtain all
service treatment records for the all period of service of the
Veteran dated between 1987 and 2007. The RO should contact the
Veteran and request that he identify the medical providers who
performed back surgery in 1997 and those records should be
obtained. In additional all recent VA treatment records dated
from June 2009 to the present should be obtained.
The Board emphasizes that records generated by VA facilities that
may have an impact on the adjudication of a claim are considered
constructively in the possession of VA adjudicators during the
consideration of a claim, regardless of whether those records are
physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67
(1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).
Accordingly, the case is REMANDED for the following action:
1. The RO should obtain from the NPRC (or
other appropriate source(s)) the service
treatment records pertaining to the Veteran's
all periods of active service from March 1987
to September 1987, from January 2001 to
February 2001, from January 2003 to June
2003, from August 2003 to September 2003, and
from November 2006 to September 2007. The RO
must follow the procedures set forth in 38
C.F.R. § 3.159(c) as regards requesting
records from Federal facilities. All records
and/or responses received should be
associated with the claims file. If no
records are available, that fact should be
documented, in writing, in the record.
2. The RO should contact the Veteran and
request that he identify all medical
providers regarding surgery of the spine in
1997. The RO should obtain any necessary
authorizations and all records identified
should be requested and associated with the
claims file. If no records are available,
that fact should be documented, in writing,
in the record.
3. Obtain all outstanding records of
treatment of the Veteran by VA dated from
June 2009 to the present. All records and/or
responses received should be associated with
the claims folder. If any records sought are
not obtained, notify the Veteran and his
representative of the records that were not
obtained, explain the efforts taken to obtain
them, and describe further action to be
taken.
4. Transfer the Veteran's claims folder to
the November 2007 VA examiner and ask him to
render an addendum opinion. If the 2007 VA
examiner is not available, transfer the
Veteran's claims file to another appropriate
VA examiner. The examiner should note that
he or she has received and reviewed the
claims file.
The examiner should answer the following:
Did a low back disorder clearly and
unmistakably exist prior to entrance into
active duty service? 2) If there was a
clearly and unmistakably preexisting low back
disorder, did this condition undergo
aggravation during service or was any
increase clearly and unmistakably due to the
natural progress of the disease? 3) If there
was not a preexisting low back disorder, is
it at least as likely as not that the claimed
disorder had its onset during service or is
otherwise related to service or an incident
of military service? For purposes of this
analysis, the term "aggravated" in the
above context refers to a permanent worsening
of the underlying condition, as contrasted to
temporary or intermittent flare-ups of
symptomatology which resolve with return to
the baseline level of disability.
The claims file and a copy of this remand
must be made available to the examiner for
review in connection with the examination. A
rationale for any opinion advanced should be
provided. All such information and opinions,
when obtained, should be made a part of the
Veteran's claims folder.
5. Schedule the Veteran for an appropriate
VA examination(s) to determine the
manifestations and severity of all symptoms
associated with the Veteran's left hamstring
muscle strain/injury, to include the presence
or absence of the cardinal symptoms of muscle
injury (i.e., loss of power, weakness,
lowered threshold of fatigue, pain,
impairment of coordination, and uncertainty
of movement). The entire claims folder and a
copy of this REMAND must be made available to
the examiner prior to the examination. Any
indicated evaluations, studies, and tests
should be conducted.
The examiner should identify all residuals
attributable to the Veteran's service-
connected left hamstring muscle
strain/injury, to include any muscle,
orthopedic, and neurological residuals.
The examiner should report the range of
motion measurements for the left leg and
knee, as appropriate.
Whether there is any pain, weakened movement,
excess fatigability or incoordination on
movement should be noted, and whether there
is likely to be additional range of motion
loss due to any of the following should
additionally be addressed: (1) pain on use,
including during flare-ups; (2) weakened
movement; (3) excess fatigability; or (4)
incoordination. The examiner(s) is asked to
describe whether pain significantly limits
functional ability during flare-ups or when
the left ankle is used repeatedly. All
limitation of function must be identified.
If there is no pain, no limitation of motion
and/or no limitation of function, such facts
must be noted in the report.
The examiner(s) should specifically discuss
the severity of any muscle impairment in
terms of slight, moderate, moderately severe,
and severe, including any muscle impairment
of the affected Muscle Groups.
The examiner(s) should also state whether
there are any neurological residuals
associated with the Veteran's service-
connected left hamstring muscle strain/injury
and identify any nerves involved. If so, the
examiner(s) should also specifically discuss
the extent, if any, of paralysis of the
nerves involved.
The examination report should provide
complete rationale for all findings and
conclusions.
6. After completion of the above and any
additional development deemed necessary,
readjudicate the issues on appeal. If the
desired benefits are not granted, a
supplemental statement of the case should be
furnished to the Veteran and any appointed
representative and they should be afforded an
appropriate opportunity to respond. The case
should then be returned to the Board, if
otherwise in order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
______________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs